Jury hears closings in Vegas hep C insurers case

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Last Updated: Thu, Mar 28, 2013 00:45 hrs

A Nevada jury was asked Wednesday to hold the state's largest health management company responsible for up to $1 billion in damages because two women contracted incurable hepatitis C during treatment at a Las Vegas outpatient medical clinic later blamed for an outbreak called the largest in U.S. history.

In closing arguments, lawyers for plaintiffs Helen Meyer and Bonnie Brunson accused Health Plan of Nevada and parent company Sierra Health Services Inc. executives of disregarding evidence that clinic owner Dr. Dipak Desai had a history of endangering patients at his endoscopy clinics.

"Profits over safety, ladies and gentlemen," attorney Robert Eglet said. "The money people kept the safety questions from the safety people. That is how we ended up with one of the worse medical disasters in U.S. history, right here in this community."

Eglet, representing Brunson and her husband, Carl, and attorney Will Kemp, representing Meyer, want the jury to waive a $350,000 Nevada medical liability cap. Eglet has said they plan to seek up to $1 billion in punitive damages.

Eglet on Wednesday accused the companies of "contracting with cheap, incompetent medical providers, with conscious disregard for the safety of patients." He asked jurors to award $20 million in compensatory damages to Bonnie Brunson and $5 million to Carl Brunson.

Kemp didn't set a dollar figure for Meyer's injuries. He asked jurors to be "fair and reasonable."

The jury will hear closings Thursday from Health Plan of Nevada attorneys, led by D. Lee Roberts Jr. and Larry Scarborough.

They've argued that Desai is responsible for the hepatitis outbreak, not the companies. Since the civil lawsuit was filed, Health Plan of Nevada and Sierra Health Services have become part of United Heathcare, part of publicly traded UnitedHealth Group.

Roberts on Friday filed a 70-page document claiming the defense was prevented from fully presenting evidence that Health Plan of Nevada wasn't liable for the injuries to Meyer and Brunson; that other entities didn't report Desai clinic shortcomings during credentialing visits; and that the defense was blocked from questioning witnesses that would help prove the defense case.

Roberts protested Clark County District Court Judge Timothy Williams's ruling March 13 that Dr. Clifford Carrol, a former Endoscopy Center of Southern Nevada gastroenterologist who treated Meyer, was ineligible to testify in the case.

Carrol was disqualified after telling the judge under oath that while he was waiting outside the courtroom to testify, he overheard a lawyer for the defense summarizing for a reporter that morning's testimony from another witness. Carrol told the judge he felt "unsettled" and intimidated by the prospect that his testimony might be mischaracterized. He said he might change his testimony on the stand.

Roberts argued that Carrol had first-hand knowledge of how Meyer was treated, and his testimony could have helped the defense.

The hepatitis outbreak became public in early 2008, when the Southern Nevada Health District in Las Vegas notified more than 50,000 patients to get tested for blood-borne diseases including AIDS. Local and federal health investigators traced hepatitis C infections of nine people to outpatient procedures conducted in 2007 at endoscopy clinics owned by Desai. Hepatitis C was found in another 105 patients, but those cases were not conclusively linked to Desai clinics.

Meyer and Bonnie Brunson allege that they were infected during procedures at Desai's Endoscopy Center of Southern Nevada in 2005. Carl Brunson's claim against the companies alleges negligence and lack of consortium.

The civil jury of eight people and four alternates has been hearing evidence and testimony for five weeks. They could begin deliberating Thursday.

They'll be asked to determine if, as Eglet and Kemp argue, the companies knew that Desai was cutting safety corners when he won a low-bid contract to provide endoscopy services for patients covered by the companies handling more than 80 percent of the HMO market in and around Las Vegas.

"This case boils down to defendants' failure to look, failure to listen and failure to speak what they knew" about Desai's work performance, Eglet said Wednesday. "They chose to replace a good doctor with a known bad doctor. They could have contracted with safer doctors. They chose profits, not safety."

Desai, once a powerful member of the state Board of Medical Examiners, isn't named in the civil lawsuit. He has denied wrongdoing, declared bankruptcy and surrendered his medical license, but faces trial in state court nest month and federal court in May on separate criminal charges stemming from the outbreak. His lawyers have fought for years to prove that he is so incapacitated by strokes and other physical ailments that he is unfit for trial.

State prosecutors accuse Desai of faking his medical conditions in an attempt to escape prosecution.

Eglet and Kemp won hundreds of millions of dollars in civil judgments in 2011 against pharmaceutical companies they blamed for supplying recklessly large 50 milliliter vials of the powerful anesthetic propofol to Desai clinics. Jurors were told in that case that 10 or 20 milliliter doses were commonly needed for outpatient colonoscopy procedures, and the larger vials were unsafely reused from patient to patient.

Desai and his clinics reached undisclosed settlements with plaintiffs before trial in those cases.